IBAHRI concerned over reports of harassment of Ugandan Supreme Court Judge
The International Bar Association’s Human Rights Institute (IBAHRI) is concerned over reports of unfair and arbitrary treatment against the Republic of Uganda’s Supreme Court Justice, Dr Esther Kisaakye, following her handing down a dissenting judgment in a 2021 presidential election petition. Disciplinary proceedings have been brought against her and have led to the recommendation to the country’s president that she be removed from the Office of the Supreme Court. The implications such a proposal poses to judicial independence in Uganda is also of concern to the IBAHRI.
According to reports received by the IBAHRI, a disciplinary inquiry was initiated by Uganda’s Judicial Service Commission (JSC) following Justice Kisaakye’s decision to deliver her dissenting judgment in one of the 2021 presidential election petitions, where the main opposition leader from the National Unity Platform (NUP), Robert Kyagulanyi Sentamu, also known as Bobi Wine, filed a petition challenging the results of the 2021 presidential election that saw incumbent President Yoweri Museveni re-elected. Sentamu made a follow-up application seeking leave of the Court to amend his main application, which the Court refused to grant, holding that the application had been beyond the strict time limit provided by law within which the petition should be filed. However, Justice Kisaakye dissented, the only judge on the bench to do so, arguing that the applicant had been deprived of his right to prepare the application as he was under illegal house arrest.
Justice Kisaakye alleges that Chief Justice Alfonse Owiny-Dollo attempted to obstruct her from handing down her dissenting judgment by ordering her not to deliver it and having armed police guards confiscate her court files and reasoned rulings, which have yet to be returned. She proceeded to deliver her dissenting judgment to the public on 18 March 2021, despite the lights and public address system in the courtroom being switched off. On 25 March 2021 the JSC opened an investigation into the events of 18 March.
IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc commented: ‘Justice Kisaakye acted in accordance with international standards on the independence of the judiciary in delivering her dissenting judgement, seemingly despite overwhelming pressure not to do so. The IBAHRI is concerned that her actions have led to her being punished with calls for her to be removed from the bench apparently without due process being followed. Rather than there being calls for her removal, she should be applauded for her bravery in standing up for the rule of law and independence in her capacity as a judge. Furthermore, the IBAHRI draws attention to Principle 11 of the United Nations Basic Principles on the Independence of the Judiciary, which states “the term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.”‘
Justice Kisaakye is the most senior judge at the Supreme Court of Uganda after the Chief Justice and has served on the bench for 13 years. After being served, on 25 July 2022, with the preliminary findings of the JSC investigation, she alleges that the JSC initiated a disciplinary inquiry disguised as a general inquiry without observing any due process and set procedures under the Constitution of the Republic of Uganda. This has prompted allegations of unconstitutionality and a lack of due process by Justice Kisaakye who later filed a petition with the Constitutional Court against the Chief Justice and other senior judicial figures, including the JSC, to determine the constitutionality of the actions taken against her.
In the ongoing case, Justice Kisaakye has accused senior judicial figures of withholding her salary, housing, medical and other benefits; removing her research assistant; and refusing to allocate work to her.
Despite accusations of a lack of due process and diligence, on 27 February 2023 the JSC recommended the removal of Justice Kisaakye to President Museveni. Justice Kisaakye has accused the JSC of acting unconstitutionally under Article 147(1)(a) of the Constitution of the Republic of Uganda by effectively usurping the power of the president to set up a tribunal and acting as a tribunal itself by reaching a guilty verdict.
IBAHRI Co-Chair Mark Stephens CBE stated: ‘To preserve the sanctity of judicial independence and the rule of law, due process must be properly followed in terms of, Article 7 of the African Commission on Human and People’s Rights, Articles 147 and 28 of Uganda’s Constitution and Principle 19 of the UN Basic Principles on the Independence of the Judiciary. These standards must be especially scrutinised here due to the seniority of Justice Kisaakye and the implications it holds for judicial independence, particularly in matters regarding dissenting judgments at such a high level. The IBAHRI is concerned that the reports imply violations of Uganda’s obligations under regional and international law. We call for all procedural rights of Justice Kisaakye to be fully respected by the JSC and any subsequent tribunal established, as per Uganda’s international and constitutional obligations, and for an end to any arbitrary and unfair harassment, including punitive and pecuniary measures taken against her.’
Justice Kisaakye is the first judge to be recommended for removal from office to Uganda’s President. Uganda’s Supreme Court has adjudicated over presidential electoral disputes in 2001, 2006, and 2016.
Justice Kisaakye is a women’s rights champion and author of several papers including: Employment Discrimination against Women Lawyers in Uganda: Lessons & Prospects for Enhancing Equal Opportunities for Women in Formal Employment, Human Rights Of Women And African Experiences and Women, Culture & Human Rights.